it's been a tough week, but it's also been a week to be reminded what's best about this great, great country of ours. there's still people willing to sacrifice for i'm mike huckabee. from el dorado, texas, good night and god bless. federal authorities, like the everybody from federal authorities like the fbi and the hospital itself saying he's in we know that at least one gunshot wound came from that first firefight where his brother was killed, and that the

bleeding he had endured for nearly 20 hours is one of the reasons why he was in such serious condition when he was brought here. of course he was also shot multiple times. one of the injuries was to the head or neck. the other one potentially to his leg. the fbi hasn't said much other than he's in serious but stable condition. a lot of reports out there, a lot of different things, but that's what we can tell you with certainty that he's in serious but stable condition at this hour. the investigative team is ready to interview him. we were told earlier today, at least, he had not yet been interviewed. meantime he was found, of course, through those amazing images. of course the homeowner found him inside the boat, but it was a thermal images from the helicopter looking down over that secured their belief that he was in the boat when he was taken friday evening here and brought to this hospital once he finally did surrender. meantime we also know people are continuing to recover here.

a number of people were affected affected by the blast monday that are here at this hospital. bette israel is only a couple miles from where we were several people on his room or on the floor you have to have proper identification, your purse is checked your jacket is checked. they want to be absolutely sure nobody gets to this suspect and he has no chance of ever trying to get away. >> adam, it is kind of interesting, if he really has sustained so many bullet wounds even the issue of interrogating him soon when he is not drugged he's not drugged or in surgery, i imagine is going to take some time. >> yeah. we do know he was sedated at least earlier today. you make a great point, talking about the drug situation. a couple of people asked me, we see him getting out of the boat, the pictures. .how could he walk, be in

serious condition? take into account how much blood he lost by the time they brought him here. they did one operation on him, maybe multiple operations. you don't know the aftereffects of that. there's other tangible things you have to take into account to understand what's going on here. while they want to get information to make sure there's no other plans in place, they want to get correct information, that he's of sound mind. as you mentioned, being drugged up, that may not be the case. judge? >> adam, thank you so much. and now to the legal process ahead of us. with a former united states attorney general, the nation's chief law enforcement officer, michael mukasey, who was chief judge in the southern district of new york, presided over the blind sheik trial as well as the jose padilla case. good evening, judge. >> good evening, judge. >> good to have you back, judge. >> today we heard there will be no charges filed against the younger brother dzhokhar.

how long can the justice department wait to file charges? >> they can wait really as long as they'd like. the fact is that he -- the only down side for them is the possibility that any statement that he makes might not be able to be used at trial. they've got so much evidence, including his own confession to the person whose car he carjacked, that the likely they need any statement from him as evidence in the trial is remote. >> right. you know, judge, a lot of people h ve been talking about miranda, the public safety exception. i don't want to spend a lot of time on that. but, you know, when the police announced that the public threat was over, once dzhokhar was taken into custody, doesn't that suggest that the public safety exception doesn't kick in, or has been solidified? >> the public safety exception is in no way applicable in this

case. that was for a situation where there was a gun in a public place and the police needed to know where it was. they asked the guy they just caught where's the gun before where was the gun? they asked where is the gun. >> be that as it may you have a public defender in boston who is chomping at the bit to appoint a federal judge to defend the suspect. you could reassign a public defender is he or sheable to come in and say i don't want you talking to my client? >> he or she can say that. it's not going to stop this trying to do is to collect intelligence. i'm sure that if that's what they're trying to do, they will simply continue to do it, and gather only intelligence and not disclose it to anybody who's working on the case, or trying the case. they will put up what's called a chinese wall between the intelligence gatherers and the law enforcers so all they gather

is intelligence. that's what this high value investigation or interrogation interrogation group is designed to do. >> well, you know, what's interesting here is that, as you said, i mean they don't need these statements. you know, i'm not quite sure that this whole issue of miranda is even relevant at this point given the fact that they have so much evidence it appears based on the number of photos and images, etc., etc. but judge, what charges might they file against him? and if this case is brought in federal court, and it seems that all indications are that it will be brought in federal court, isn't a federal judge bound by, you know, the federal rules of evidence, preaccusatory delay, because they may not be able to talk to this defendant for a month or two because he's so drugged from all the injuries, and would a judge be faced with the evidentiary issues he would be with a regular criminal in a

criminal trial? >> so far as delay in charging him, motions will be made. i think i can pretty well guarantee you they will be denied. >> all right. and then you presided over the blind sheik trial. you ended up sentencing him to life in prison. now when you did so, we all expect as judges, that when we sentence someone to life, they'll spend their life in prison, but last year there were some discussion that the blind sheik, whose picture is up on the screen now, might be freed by the obama administration, that president morsi in egypt that seemed to infuriate you some what and you wrote an article, "will obama free the blind sheik?" now if you think about this, in this case, if the death penalty is not sought, are you concerned that some president down the

road could ignore the issue of a life sentence imposed by a federal judge and just send the terrorist off somewhere? >> on this guy, tsarnaev? >> right. >> no, i'm not concerned about that. he's very different from the sheik. concerned about that. a sheikh is a highly symbolic figure among muslims. he was and still is widely respected as a muslim scholar, and regarded as an authority. he's a big deal. this guy is a mutt. >> so you're not worried about that? >> no. >> finally the death penalty, if he is charged with those crimes that he clearly can be, he's eligible for the death penalty? >> absolutely. >> do you think that this >> do you think this just disat the present time -- justice department will seek it? >> i hope so. he is a poster child for the he used an explosive device in the course of a terrorist attack, killed not only one person, multiple people, intended to kill more, maimed people, and was going to go on and do it.

he's an ongoing danger. and there's absolutely nothing to hold him back other than some claim that he was dominated by his brother. >> right, right. all right. and judge, you have an article coming out in the "wall street journal" tomorrow, knick mistake it was jihad, and i would suggest that people look it up. we appreciate having you on. always good to have you here, judge. >> good to be here. >> judge mukasey, thanks. coming up next, the u.s. attorney who prosecuted a 1993 world trade center bomber on bringing the boston suspect to justice. and later, the police chief whose officers helped corner dzhokhar tell us what it was like during those moments. helped what it was like during those moments. ♪ constipated? yeah. mm. some laxatives like dulcolax can cause cramps. but phillips' caplets don't. they have magnesium. for effective relief of occasional constipation. thanks. [ phillips' lady ] live the regular life. phillips'.

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well as the justice department's investigation into the 9/11 attacks. all right, david. it's a pleasure to have you here. thanks for being here. you've actually tried terror cases in federal court. where does this case belong? like these. the oklahoma bombing, the 93 attack, there are so many terrorism cases where the defendants have been prosecuted successfully are doing life sentences and so it's really the best system or the best process we have to deal with these. now there's been talk about tribunals. tribunals have been in effect since late 2001. we are 12 years out. show me a prosecution that has been successful. show me somebody that there has been a conviction, a conviction that has been ratified under processes that have been ratified by the supreme court of the united states.

>> you are saying on appeal it is difficult to get it affirmed in court. >> we don't even know through the tribunal process whether or not the processes they have in place are tried and true. and whether or not the supreme court would at the end of the day say you know what, the process you have employed is the right one whatever conclusion you have reached is the right conclusion. >> what do you say to senators like lindsay graham and mccain who say, look, we want these guys to be enemy combatants and tried in military court. can you understand the visceral reaction to say we don't want to trot them in like a normal trill this is an act of terror. >> it is a visceral reaction. if you look at the track record here. i wouldn't rule out a tribunal. it's something the president can use in certain circumstances. maybe there are reasons to do it here. when you look at the track record over time, over the last 15, 20-years, what have we done

with terrorists? what we have done with them most successfully is put them in jail for civil tries in federal criminal court. there are tons of them sitting in jail for the rest of their lives. >> david, when you say that, how often has the death penalty been sought in the terror cases. we have the time square bomber, the underwear bomber and reed the shoe bomber they all got life. >> in the sally case the death penalty because sought and the jury in northern virginia district of virginia said no death penalty. that's not the only end here. sometimes getting jail for life sends an awful strong message. how many people in gitmo have been sentenced to death? one of the criticisms. >> you tell me. >> none. you look at the gitmo situation, you try to figure out, what's their track record, there hasn't

really been one. one of the criticisms of federal trials is the defendants will make a mocker re. >> right. >> look what happened a few months ago when khalid shaikh mohammed came and stood up and asked to wear camouflage gear none of which would have happened in federal criminal court. >> it was more of a circus in military tribe bun dmal. >> in so far as the criticism doesn't fly what you get to tribunal. >> up against a hard break. but what about the issue of discovery and the fear that our intelligence information would be given to -- >> in every single criminal case we have had we have protected it because there are federal procedures, classified information procedure act that protects that information. i would challenge any one to come up with a good argument those procedures don't work, because they do. >> finally, death penalty? >> death penalty.

>> there is more that should be applied. you have to hear lots of things. i think the one catch here might be that this is a young guy who is really led astray arguably from what we know. we don't know everything by his older brother. that is going to be something that are mitigating circumstances in all of the circumstances that one has to reasonably consider and statutorily consider in application of the death penalty. >> thank you very much. coming up, if tamar he was on the fbi radar why was he able to commit the crimes. why did it take so long to match the faces. the take counsel of dzhokhar. -- the take down of dzhokhar.

tamerlan >> important to understand why the fbi interviewed him in the first place. they had information from the foreign intelligence service about his possible radicalization. they went from there the fbi did their due diligence and did a very thorough job about trying to run that to the ground. then asked more help from that intelligence service to try to get further clarification. unfortunately they stopped cooperating. >> a foreign government asked the fbi to look into tamerlan tsarnaev as a radical. but they closed the case. could this attack have been prevented and did the fbi drop the ball? fo former senior ncif official robert mcfadden.

i will start with you robert. we have a lot of claims here that the fbi had to close their investigation of tamerlan and we had an fbi gentlemen on last night who says the fbi once they closed it no longer had any authority to collect intelligence domestically. so now what we have got are at least two people that we know of who were investigated the fbi, that being major nadal hassan from fort hood and this guy. did they drop the ball? >> i mean, at this point, judge, within the coming days we know there is going to be a very thorough accounting. i know myself from background of federal investigators take it in good faith the fbi did did due till against and a thorough job in the case. the key here is what information came from the russian fsb the

rough equivalent of fbi. they checked data bases. typically what happens is you go back to the service to look at what additional information is that is key. >> what is interesting is mike rogers in that clip that we saw basically says what robert just said is they went back to the other agency and they shut us down. wait a minute. if we had that information, i know you get thousands of terrorist tips all of the time, but when a foreign intelligence service contacts us and says we believe this guy is radicalized he's in this country you are giving him political asylum it's a little different than just a tip that comes in. >> it is a little bit different. we have to look at the circumstances of what exactly did happen. the foreign intelligence service, i don't know that it was from russia. i heard from all of the news media it was russia and the fsb. i assume that is logical and probably did happen. gave information to the fbi in

early 2011 indicating tamerlan tsarnaev was really into it and interested in coming to their country presumably their host country for radicalization. i am concerned with how they got that information if tamerlan was in the united states unless they got it from him or somebody that was close to him in their country. no nonetheless that information came from the fbi and they did an investigation. let's look if we could exactly what type of investigations the fbi operate. following watergate the fbi we will use the word incumbered with the attorney general's guidelines at the time which were quite prohibitive. they changed and evolved in 2011. thoeped three types of cases. i understand that. but here's the question. we don't have a lot of time. the question is, once this guy leaves the country goes to

russia, for six and a half to seven months after we have been warned already and then comes back and puts up all of these radicalized youtube videos, shouldn't that have been a telltale? >> robert let me ask you that. >> quite potentially, but here's a couple of other things to consider. he was allowed to go to russia, so it begs the question on the russian authority side was there any resistance to that what did the russians do. another thing we think will be interesting over the next few days did russia have anything to put in interpole doesn't have jurisdictions for rays but it is information distribution systems to put up notices if he is a person of interest. >> david, i am going to go back to you now. there is a report now that the fbi are saying even though they were supposed to close the case and they say they closed the case and can't follow it any more. although anybody can follow it on youtube. the fbi interview led the

homeland security to hold up citizenship for one of the brothers. if that's true why did the fbi need public help to find out who tamerlan was when they showed the photographs in the newspapers. shouldn't their data base if indeed their case was not closed, shouldn't that have interacted with the photograph, shouldn't there be some facial recognition with the same agency? >> let me start with the fact that the fbi did close the case in 2011. that's the a point where they asked the host service if they had any further information and there was nothing forthcoming at that time. the case was closed. the mother has come on the news media came on recently and said not really. her son told her she whe was be badgered by the fbi, not true. i would like to look at the extent of the investigation in doing all of the data check robert referred to. we interviewed many of the relatives. we interviewed the mother so often she was complaining to everybody she was being harassed.

>> do you know for a fact? have you seen the file? >> i have not seen any files. >> how did you know that was the case? >> i got it from fox news. what could be better? >> touche. i expect there will be inquiry noose this case? >> thoroughly looked at. in these situations lesson learned. we will do better. >> thank you, judge. >> coming up, we have seen it in the movies, but his manhunt and take down was even more dramatic. talk to the chief who did it, next. >> got a report from watertown of 67 franklin street they have a boat with blood on it they believe someone is on the boat.

>> live from america's news

headquarters i am harris falkner. air travel expected to feel the effects of the budget cuts in washington known as sequestration. the federal aviation administration began furloughing air traffic controllers the other day. federal arrival departures mostly on time. but with commuter traffic it could be heck lick week of heavy delays at the airport. two more birth related deaths in china. six new cases bringing the total number of cases to more than 100. the who still has not found the source of this latest outbreak. they expect more people will fall ill. half of the infected patients have had no contact with poultry. it is the bird flu. they say human to human transmission so far has been rare. they are watching it obviously. i am harris falkner. let's get you back to "justice." >> welcome back to a special

edition of "justice" on the boston bombing. a quick look at the time line of event that led to the identification of the two suspects. >> this is how the tragedy in boston unfolded, monday april 15th, 9:00 in the morning in hopkins son massachusetts just outside of boston, 23,000 runners from all over the world prepared for a gruelling race of 26.2 miles. >> we are here at the 117th boston marathon. >> it's the world's oldest annual marathon. on this day the weather a ryes p p -- crisp 50 degrees was perfect for running. >> it will be a special day regardless. >> spectators lined the route. the first woman from kenya was the first woman to cross the finish line at copley square. 12 minutes later at 12:10 p.m.,

an ethiopian won for the men. the remaining runners made their way to the finish line. but at 2:50 p.m., the unthinkable. 13 seconds later... >> oh my god they are dead. >> the scene became one of karnage. at 8:55 p.m. that day fox news learned that three people had died. 8-year-old martin richards live in boston's door cherchester nad was watching with his family. his mothm and sister were seriously wounded in the blast. by tuesday april 16th a second victim was identified. crystal campbell. initially her family was told she survived. at the hospital they learned she was the among the ones that were

killed. >> we are heartbroken. >> the third victim was with youliyou a child who her family said it was her dream to study in the united states. photos were released of the bomb's components and were used two pressure cookers with bearings and explosives. >> the bomb maker who needed the devices would have needed practice with a device. >> the president showed the nation's resolve. >> we will find whoever harmed our citizens and we will bring them to justice. >> on thursday a memorial service was held at boston cathedral of the holy cross. at 5:10 p.m. the fbi held a

press conference and showed for the first time these photographs of the the suspects. >> that press conference and release of the photographs set off the grim series of events that would lead to another death of mit police officer sean collier. the suspects were identified add the two brothers tamerlan and dzhokhar tsarnaev. arthel neville, fox news. chief, thank you for being with us this weekend. you must be exhausted. >> i am pretty tired, judge. >> let me start where that ended. sean collier is caught on the campus at 10:20. when do the gun shots and explosions in watertown start?

>> they start approximately 12:25 a.m. >> what is the first thing you hear about? how do you know there are gun shots? >> i like to tell the officer's story. they were on the street and we knew there was the execution of the mit police officer. we knew there was a car jacking and as a result of that vehicle we had gps updates from cambridge telling us where the vehicle was.eading ward waterto and that it was actually in watertown. that's when we began to go into watertown to find the vehicle in the east. >> were your officers alone at that time? were you assisted by the fbi and atf state police were joined by the hunt?

>> all of the ages agencies wer given the same update we were in boston and cambridge it was our officers who encountered the vehicle first. other officers responded behind us. >> when they encounter that vehicle, chief, tell us exactly what happened. >> first officer, officer joe reynolds saw the blackmer said suv the car jacking vehicle travel along laurel street which is a back street in water town. they were driving each brother driving a vehicle. each following behind them and radioed our dispatch who prop properly our supervisor told him do not try to stop the vehicle until we get more backup. he followed them a short distance when they stopped both

of the brothers got out of the car immediately started shooting at my police officer as he was in his cruiser. >> what happened to that officer? >> miraculously he is arrive live -- alive to tell the story. courageous act to put that vehicle in reverse and create some distance between him and the two brothers that were shooting at him. at the same time -- >> there's no question he is one of the many heros law enforcement heros of this case. go ahead. at the same time? >> two, three other on duty police officers showed up within seconds. they also joined the gun fight on the street. >> both are out of the car and they are shooting? >> what do they have? >> we have reports they had long guns and hand guns.

at different times during the gun battle which came on for most of 10 minutes they used all of these weapons. >> the gun battle goes on the older brother tamerlan starts as i understand it coming down the street guns ablazing almost like he knows he is going to get shot. what is that about? >> a lot more than that happened. we have of my four officers we had two off duty officers show up. we had 6 watertown police officers and all of us around the area started to come in. during the gun battle it was my 6 or 7 officers who were heroic during the efforts. at one time they popped the trunk and started hurling the first came over and started exploding which i understand was about the same explosion from the boston marathon. we found the pressure cooker lid

down the street further. >> they were prepared. >> we had this gun battle going on and my officer taking not only fire but now they are taking explosives being thrown at them. i can't say how proud i am of the men and woman in the police department of water dotown of t job they did that night. >> no question, he chief, no question. these people are heros. they put their lives on the looifrn ry day. let me focus on when the older brother gets out and starts coming down the street. >> sure. we have had six explosives thrown at our officers. at some point he starts to close in, he wants to get closer and he wants to kill one of my police officers. he comes right at him. they are exchanging gun fire and they are within about 10 feet of each other is my understanding. my fer has made some hits in huz

midsection b-- his midsection bt he is still coming. fortunately for us the brother ran out of ammunition. we were able to tackle him throw him to the ground. three of my officers were in the middle of the street handcuffing him. so we had him in custody. >> he is down. >> then what happens? >> he is down they are trying to tend to him, and judge i am sure you can understand they had very difficult time hearing with three, four, five explosions going off around them. all of a sudden they realize from the bright light that someone is coming bearing down they look up get out of the way. thank god they they could hear that. they had to dive out of the way. here comes the other brother in the black sufficient roaring down the street. >> what does the other brother do? >> he gets out of the way. our officers get out of the way fortunately. the older brother is laying in the street and the younger brother runs him over.

>> now the 19-year-old younger brother who runs over tamerlan then gets away. how does a 19-year-old get away? it's a 10-minute gun fight. he got away, was there a chase after him or no? >> we had that gun battle and he gets dragged down, drags the brother down the street a short distance and he keeps going. what happened next was the transit police, the state police and other agencies were behind us. one of the transit had been shot we realize he gets shot in the groin hits an art re. he is starting to bleed out. our officers went to his aid and officer tim me mitten of our department who is a medic started to give him aid. fortunately they were able to stop the bleeding. the watertown fire department. >> i am running out of time here. i don't mean to not want to go through all of these great

heros, but is there a car chase with the 19-year-old? >> right. he only goes down 300 yards. there are so many law enforcement responding he can see the lights he can hear the lights. >> i am coming up against a break. he gets out of the car and he runs? >> right. >> is anybody chasing him? >> well, we are in pursuit of him. he runs into a backyard it is close to 12:45 in the darkness. we lose sight of him at that point in this neighborhood. >> all right chief. thank you so much for being with us. we all thank you in the department for the great work they did. >> thank you, judge. >> coming up the september 11th terrorists were in this country on visas. now a leading senator warns there may be others. what can be done to track them down? ♪

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how do you investigate a guy like this? >> he will be interrogated. all you can do is write his answers down. this will happen. it will happen as soon as possible. they are not going to give them a lot of leeway here. there are important questions they have to follow up on from an operational standpoint. people want to ask why did you do this? important is who helped you? who was your brother in contact with during his time overseas. was there a support structure we can get on immediately. there are literally at the door of his hospital room standing by as soon as it is able to happen he was on him. >> can you tell us about this and that and the guy says, you know what, i don't want to tell you about anything. you have a cold blooded killer or someone alleged to be that. you think he is going to just

breakdown and friendly say, yeah, i'll tell you why my brother did this and we were funded by this one. you think talking to him you are going to get him to spill the beans? >> he will be in the u.s. system now. if he declines to say anything yes our hands are tied it is at that point. looking at this honestly, you would have to be either woefully naive or stupid to think that there isn't a larger issue here. obviously his older brother who traveled to moscow and then on likely to pakistan and chechnya had contact and had training prior to then coming back here. the idea they had contacts in the state you can't discount that. this is not just these two brothers self radicalizing and acting in a bubble.

>> we don't know where they got the money for all of this stuff. we don't know that they were working. there's a lot more to this story. anyway mike baker thank you for being with us. >> up next we remember the victims of the boston bombing. speaking to the national guards man who ran the boston marathon and ran toward the danger to help save lives. thank you orville and wilbur... ...amelia... neil and buzz: for teaching us that you can't create the future...

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>> most of the focus has been on two suspected bombers. we can't forget the scores of victims as well as heros from last monday's terror attacks. joining me on the phone is first lieutenant steven fiola of the mags mass national guard who was there on monday and ran towards

the blast to help those in need. >> steven? >> yes, judge, how are you? >> well. thank you for being with us this evening. you ran the marathon ahead of time but you were there for the explosion, you went toward that barricade. tell us what you saw and how you felt? >> what we saw was actually i didn't run the marathon, i worked the marathon. i had my gear on with lots of weight on it. i was at the finish line. one of my soldiers had just completed at 2:50 in the afternoon when the blast went off. i could see it out of the corner of my eye turning to see what everyone the blast and just completely annihilated that area. >> what did you do? >> at that moment there were two

things on my mind. the switch turns on and it all comes down to taking care of my soldiers keeping them in an area where i knew they were accountable. i ordered my soldiers to stay put and myself and two other soldiers were with me and staff sergeant mark welsh he ran towards the flash. >> steven, thank you so much. we are grateful to you and the people you were with as well for helping out so many victims. that's it for us tonight. thanks for joining us. before we go let's not forget the victims and survivors whose lives were forever changed the eviled visited upon them last monday. war zone created two evil individuals were forever be indelibly etched in our minds.

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plus any of these risk factors because you could be at increased risk for plaque buildup in your arteries over time. and that's why when diet and exercise alone aren't enough to lower cholesterol i prescribe crestor. [ female announr ] crestor is not right for everyone. like people with liver disease or women who are nursing, pregnant or may become pregnant. tell your doctor about other medicines you're taking. call your doctor right away if you have muscle pain or weakness, feel unusually tired, have loss of appetite, upper belly pain, dark urine or yellowing of skin or eyes. these could be signs of rare but serious side effects. is your cholesterol at goal? ask your doctor about crestor. [ female announcer ] if you can't afford your medication, astrazeneca may be able to help. to prove to you that aleve is the better choice for him, he's agreed to give it up. that's today? [ male announcer ] we'll be with him all day as he goes back to taking tylenol. i was okay, but after lunch my knee started to hurt again. and now i've got to take more pills. ♪

yup. another pill stop. can i get my aleve back yet? ♪ for my pain, i want my aleve. ♪ [ male announcer ] look for the easy-open red arthritis cap. to your table for a limited time! it's our seafood dinner for two for just 25 dollars! a handcrafted seafood feast made to share. first you each get salad and unlimited cheddar bay biscuits. then choose two from a wide variety of chef-inspired trées like our new honey garlic crispy shrimp or new seafood lover's lingui. round out your seafood dinner with your choice of either an appetizer or dessert to share! don't miss our seafood dinner for two, just $25 at red lobster, where we sea food different.